Earlier this month, in United States ex rel. Zafirov v. Florida Medical Associates, Inc., the Eleventh Circuit joined four other circuits in holding that the qui tam provisions of the False Claims Act do not violate the Appointments Clause of Article II of the Constitution.
The court held that private relators are not officers of the United States, and do not have to be appointed by the President, because they hold a temporary position, do not receive continuing compensation, and have only personal, not continuing, duties.
The much anticipated decision vacated a 2024 district court decision that was the lone case to hold that the qui tam provisions violated the Appointments Clause and which other courts had described as an “outlier.”
The Eleventh Circuit remanded the case for the district court to consider the defendants’ arguments that the qui tam provisions are unconstitutional because they violate the Take Care and Vesting Clauses of Article II, which assign certain powers to the Executive Branch of government.
All of the circuit courts that have considered those questions have concluded that the qui tam provisions do not violate those provisions either.
“Qui tam actions have a long history in the United States, with laws authorizing such actions adopted before and immediately after the adoption of the Constitution,” said Claire Sylvia, a whistleblower attorney and partner at Phillips & Cohen. “The Supreme Court found that history nearly ‘dispositive’ when it held...
Earlier this month, in United States ex rel. Zafirov v. Florida Medical Associates, Inc., the Eleventh Circuit joined four other circuits in holding that the qui tam provisions of the False Claims ...